What Is an Order of Custody?

An order of custody gives responsibility for the care, control and maintenance of a child to one or both of the child's parents or to another party.

Who May File a Petition for an Order of Custody?

A parent, grandparent or a person with a substantial connection or relationship with the child may file a petition in Family Court requesting that the court place the child in his or her custody. A copy of the petition and a summons must be served upon (delivered personally to) the person or parties who presently have custody of the child. If the child's parents are separated and one parent seeks a custody order, that parent must have the papers served upon the other parent. If a non-parent is seeking custody of the child, then both of the child's parents must be served.

There are no filing fees in Family Court.

What Happens at the Hearing?

If the parties agree about custody of the child, the judge may take testimony from both parties and enter an order of custody on consent, without the need for a formal hearing. If the parties cannot reach an agreement about custody, the court will hold a hearing, taking testimony from both sides, and may appoint a lawyer to represent the child. The court may order an investigation and report from a social services agency or mental health professional. After considering the evidence presented, the court will award custody based upon what is in the child's best interests.

In some counties in New York City, a custody or visitation case may be heard by a Family Court "court attorney-referee", who may hear and decide the case and issue orders.

What Is an Order of Visitation?

A parent seeking to visit with a child may file a petition in Family Court against the person or persons who have custody of the child. Custody and visitation matters are often heard together within the same hearing, but a visitation petition may also be filed as a separate matter. Other family members, such as grandparents or siblings, may also file a petition seeking an order of visitation. The court will order visitation if it is in the child's best interests.

Must the Parties Have Lawyers to Represent Them?

The parties to custody and visitation matters may represent themselves or hire lawyers. In some cases, when a party cannot afford to hire a lawyer, the judge may appoint a lawyer at no cost. The judge may also appoint a lawyer to represent the child; this lawyer is called the "Attorney for Child."

What is Custody/Visitation Mediation?

Mediation is a voluntary and confidential process to resolve conflicts.

A trained, neutral person (the mediator) can help you develop a parenting plan that will work for your particular family. The mediator will not make any decisions; you will speak and decide for yourself.

Mediation helps you learn how to communicate with the other parent about issues concerning your child.

Mediation can help you understand your situation in new ways so you can resolve your conflicts.

Mediation gives you the chance to discuss all the issues affecting your child, not just the legal ones.

If you reach an agreement, it is sent back to court on your adjourn date. If the judge or referee agrees, it can become a court order.

Can a Custody or Visitation Order Be Changed?

Either party may file a petition to have a custody or visitation order modified (changed). The party seeking to have the order modified must prove that there has been a substantial change of circumstances since the original order was issued. The court holds a hearing to determine if a change is in the child's best interests.

You can use the free and easy DIY Form program to make your petition to ask the Family Court to change the custody/visitation order.

What Happens If One Side Interferes with the Custody or Visitation That Was Ordered by the Court?

If a court order gives certain custody or visitation rights to a party and the other party fails to obey the order, the complaining party may file a petition alleging a violation of the order. After the court holds a hearing, the judge may change the order and/or impose sanctions on the party who has failed to comply with the order.

You can use the free and easy DIY Form program to make your petition to ask the Family Court to take action against the other parent who fails to follow the custody/visitation order.

Are There Ways to Settle Cases Without Going to Trial?

When you come to court about custody or visitation with your child, you may have a choice: whether to litigate your case before a judge (or referee) or to have your case referred to mediation.

Mediation is a free, voluntary and confidential process where you and the other parent work with a neutral mediator to create your own parenting plan. <click here to see more>